Archive for January 4th, 2006

Some time ago, I wrote about the blatantly unfair procedures used to suspend licenses in DUI cases ("Due Process and Automatic DUI License Suspensions"). I pointed out that the arresting officer is the judge, jury and executioner: He confiscates the drivers’s license from the person he arrests and issues them a "Notice of Suspension" which legally serves to immediately suspend the license.

This presumption of guilt and execution of sentence by the officer has been held to afford "due process" since the driver has a "right" to appeal the summary suspension to the Department of Motor Vehicles. Using California as a fairly typical example, a demand for hearing must be made to the DMV within ten calendar days; if a demand is not made before the eleventh day, the right to appeal is lost.

The hearing is held by telephone or in a small room at the state DMV offices. The driver can be present with his attorney; the arresting officer will probably not be present for cross-examination, as hearsay documents like the arrest report are admissible and usually constitute the DMV’s entire case. In addition to the driver, a hearing officer is present. This "hearing officer" has no legal training, may have nothing more than a high school diploma, and is an employee of the DMV — that is, the same agency that wishes to uphold the suspension.

The DMV’s prosecutor will present the evidence, usually consisting of the hearsay documents, leaving the citizen’s attorney with nothing to cross-examine — unless he subpoenas the officer himself and pays his overtime salary. The citizen can then testify or present other evidence.

Oh, yes, one other thing: the hearing officer and the prosecutor are one and the same person. That’s correct: the high school graduate will prosecute and then pass judgment. He will present his case to himself. This individual with no knowledge of the rules of evidence will rule on objections raised by the citizen’s attorney. And, of course, as prosecutor he can make his own objections to the citizens’ evidence — and then, as judge, rule on them. Not surprisingly, the prosecutor/hearing officer usually wins. And this is called "due process" in America.

Finally, however, a real judge has come along who is apparently unafraid of the political consequences from MADD (mainly because he’s retiring soon) and recognized the process for what it is:

Broward County, FL Dec. 30. The way state regulators strip licenses away from those charged with drunken driving is "fundamentally wrong" and "constitutionally unacceptable," Broward Circuit Judge J. Leonard Fleet ruled Thursday…For years, hearing officers with no legal experience, and some with only a high school diploma, decided whether motorists’ driving privileges should be restored as they await trial.

To offset their lack of legal knowledge, the 71 judge-like officers across the state depended on attorneys provided by the state motor vehicle department to explain legal jargon…"These people have no idea what to do without lawyers telling them what to do," (defense attorney) Fields said. "They don’t know what the hell they’re doing. They’re not lawyers."

In one of his final rulings before retiring, Fleet said it was a conflict of interest for hearing officers, whose duty it is to act as impartial judges, to be advised by attorneys working for the department that is attempting to strip away driving privileges. Fleet barred all hearing officers in Broward County from conferring with their staff attorneys….At issue now is how hearing officers with no legal background will be able to rule on appeals from drivers attempting to get their licenses back.

No problem. Apparently, the only difference between California and Florida is that the hearing officers in California have never had access to Department attorneys with whom to consult. They don’t need it: they’re high school graduates.